Brigham Young University Law School BYU Law Digital Commons Utah Court of Appeals Briefs 2000 Thurston v. Thurston : Brief of Appellant Utah Court of Appeals Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_ca2 Part of the Law Commons Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. Ronald Thurston; Pro Se. Andrew B. Berry, Jr.; Attorney for Appellant. Recommended Citation Brief of Appellant, Thurston v. Thurston, No. 20000228 (Utah Court of Appeals, 2000). https://digitalcommons.law.byu.edu/byu_ca2/2679 This Brief of Appellant is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court of Appeals Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. IN THE UTAH COURT OF APPEALS ----ooOoo---- JENNIFER MELISSA THURSTON, Petitioner and Appellant, Case Number 20000228-CA vs. RONALD THURSTON, Priority Number 4 Respondent and Appellee. ----ooOoo---- BRIEF OF APPELLANT APPEAL FROM THE FINAL ORDER TRANSFERRING JURISDICTION AND DISMISSAL BY THE SIXTH JUDICIAL DISTRICT COURT FOR THE COUNTY OF SANPETE WITHIN THE STATE OF UTAH THE HONORABLE LOUIS G. TERVORT PRESIDING RONALD THURSTON ANDREW B. BERRY, JR. 0309 Pro Se for Appellee Attorney for Appellant 2340 NE 5th Street 62 West Main Street Salem, Oregon 97303 Moroni, Utah 84646-0600 Telephone: 541 994-3270 Telephone: 801 436-8200 ORAL ARGUMENT NOT REQUESTED FILED SEP 2 1 iuOO COURT OF APPEALS IN 'rBE UTAH COURT OF APPEALS ----ooOoo---- JENNIFER MELISSA THURSTON, Petitioner and Appellant, Case Number 20000228-CA vs. RONALD THURSTON, Priority Number 4 Respondent and Appellee. ----ooOoo---- BRIEF OF APPELLANT APPEAL FROM THE FINAL ORDER TRANSFERRING JURISDICTION AND DISMISSAL BY THE SIXTH JUDICIAL DISTRICT COURT FOR THE COUNTY OF SANPETE WITHIN THE STATE OF UTAH THE HONORABLE LOUIS G. TERVORT PRESIDING RONALD THURSTON ANDREW B. BERRY, JR. 0309 Pro Se for Appellee Attorney for Appellant 2340 NE 5th Street 62 West Main Street Salem, Oregon 97303 Moroni, Utah 84646-0600 Telephone: 541 994-3270 Telephone: 801 436-8200 ORAL ARGUMENT NO'r REQUES'l'ED TABL& OF CONTENTS Page TABLE OF CONTENTS . i TABLE OF AUTHORITIES .. ii STATEMENT OF JURISDICTION . 1 STATEMENT OF ISSUES PRESENTED FOR REVIEW .. 1 STANDARD OF REVIEW .. 3 STATEMENT OF THE CASE 3 STATEMENT OF THE FACTS .. 9 SUMMARY OF ARGUMENT . 21 ARGUMENT .... 24 THE OREGON COURT HAD NO JURISDICTION UNDER THE UCCJA. 24 UTAH'S JURISDICTION UNDER THE UCCJA .. 27 THE PETITIONER'S RIGHT OF DUE PROCESS WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO PERMIT HER A HEARING TO PRESENT EVIDENCE ON THE FACTORS DETERMINING JURISDICTION . 38 THE FAILURE TO MAKE A RECORD OF THE CONVERSATION BETWEEN THE OREGON COURT AND THE UTAH COURT IS ERROR . 43 THE TRIAL COURT SHOULD HAVE MADE FINDINGS OF FACT AND CONCLUSIONS OF LAW . 47 CONCLUSION 49 ADDENDUM A. Appealed Order of February 22, 2000. B. Transcript of hearing on December 10, 1999. c. 1. Oregon UCCJA, ORS 109.701 et seq. 2. Utah UCCJA, U.C.A. 78-45c-3 et seq. D. Ronald Thurston's Oregon Petition for Dissolution filed March 20, 2000, in Lincoln County Circuit Court, case number 001309, Return of Service by Kimberly Dunham of May 3, 2000. Minutes of June 5, 2000, hearing. i TABLE- OF AUTHORITIES Page(s) CASES Acton y. Deliran, 737 P.2d 396 (Utah 1987) ......... 49 Alloway v. Duncan, 996 P.2d 1010 (Or.App. 2000) .. 26,37 Bishop v. OB~C Consulting Engineers, 982 P.2d 25 (Or. 1999) ... 27 Briggs y. Holcomb, 740 P.2d 281, 283 (UT App. 1987) ..•. 45,46 Crump v. Crump, 821 P.2d 1172 (UT App. 1991). ' • ' 4 3 Curtis v. Curti$, 789 P.2d 717 (UT App. 1990) 24,38,43 Holm y. Smilowitz, 840 P.2d 157 (UT App 1992) . .. 3,23,24,34,35,43,46 Gribkoff v.Bedford, 711 P.2d 176, 178 (Or. 1985) ...... 27 Kelly v. Draney, 754 P.2d 92 (UT App. 1988) ..•..•... 49 Kinkella v. Baugh, 660 P.2d 233 (Utah 1982) ...•..... 32 Li$ka v. Li$ka, 902 P.2d 644 (UT App 1995} ...•..... 3,24,46 Murphy v. Price, 886 P.2d 1048 (Or. 1994) .......... 27 Paffel v. Paffel, 732 P.2d 96, 99 (Utah 1986} ....•. 35,42 Rupp v. Grantsville City, 610 P.2d 338,341 (Utah 1980) ... 42 State in Intere$t of D.S.K. v. Kasper, 792 P.2d 118 (UT App. 1990) ... • 22,24,45 Wi$COrnbe v. Wi$Combe, 744 P.2d 1024, 1025(Utah 1987) .... 42 Wyatt v. Falhsing, 396 So.2d 1069 (Ala.Civ.App. 1981) .. 46 Yost y. Johnson, 591 A.2d 178 (Del. 1991) ... 40,45 ii STA'fUTES AND RULES Utah Code Annotated, Section 78-45c-3 et seq ........ 1,3,20,22,23,25,31,33,34,35,36,37,40,41,47,48,49 Or. Rev. Stat. 109.751 et seq .......... 22,25,26,36,37 Utah Code Annotated, Sections 78-22a-2(1), et seq. 35 Utah Code Annotated, Sections 78-56-1.1, . 46 STATEMENT OF JURISDICTION Jurisdiction is conferred upon this Court by Utah Code Ann., § 78-2a-3(2) (h), and by Rules 3 and 4, of the Utah Rules of Appellate Procedure. ISSUES PRESENTED FOR REVIEW The Petitioner and Appellant, JENNIFER MELISSA THURSTON, request this Honorable Court consider upon this appeal the issues which follow: a. Whether the Sixth Judicial District Court denied the due process rights of the Petitioner when it summarily deprived her of the right to a hearing and to present evidence? Preserved at R. 86; Tr. pp. 5-6, 9-10. b. Whether the Petitioner should have been permitted to present evidence upon the issues set forth in the UCCJA, at Section 78-45c-3, in order to determine whether the basis' of jurisdiction in this state exist? Preserved at R. 86-88; Tr. pp. 5-10. c. Whether the Petitioner should have been permitted to present testimony and documentary evidence as to the home state of 1 the children, the best interest of the children, the significant connections the children and parents have with the State of Utah, and the lack of significant connections with the State of Oregon? Preserved at R. 86-88; Tr. pp. 5-10. d. Whether the Petitioner is entitled to present evidence, testimonial and documentary, upon emergencies, abuse and maltreatment of the children and the Petitioner by the Respondent? Preserved at R. 86-88; Tr. pp. 8-9. e. Whether the Petitioner should have been permitted to present evidence as to the children's present and future care, protection, training, and personal relationships? Preserved at R. 86-88. Tr. pp. 5-10. f. Whether the Petitioner should have been permitted to present evidence that the State of Oregon was without jurisdiction over the children and the Petitioner? Preserved at R. 86-88; Tr. pp. 5-10. g. Whether the Petitioner should have been permitted to present evidence that she had not been served with Oregon documents giving the State of Oregon jurisdiction, and that no Oregon divorce case had ever been filed? Preserved at R. 44, 86-88; Tr. pp. 5-10. h. Whether a conversation by the trial court with a judicial officer of the State of Oregon should have been made upon the record or a contemporaneous record of the conversation with the trial court made? Preserved at R. 86-88; Tr. p. 7. 2 i. Should the trial court have made findings of fact and conclusions of law upon the issues set forth in the UCCJA, Utah Code Annotated, Sections 78-45c-3,4,5,6, and 7. Preserved at R. 86- 88; Tr. p. 8. STANDARD OF REVIEW The standard of review governing the determination of each of the issues presented upon this appeal, because no particular deference is given to the trial court's rulings on questions of law, is the correction of error standard. Liska y. Liska, 902 P.2d 644 (UT App. 1995); Holm v. Smilowitz, 840 P.2d 157 (UT App. 19 92 ) . STATEMENT OF THE CASE On January 8, 1999, Jennifer Thurston and her children returned to Sterling, Utah from the State of Oregon. R. 44. On March 24, 1999, the Sixth Judicial District Court issued an Ex Parte Protective Order granting custody of the parties children, Tricia and Christopher, to Jennifer Thurston, restraining Ronald Thurston from removing the children from the State of Utah and restraining him from inflicting domestic violence and abuse upon Jennifer Thurston and her minor children, and ordering him to stay away from the children's schools and church in Sterling, Utah. R.54-57. On April 5, 1999, Ronald Thurston filed a Petition for Restraining Order to Prevent Abuse under the Oregon Family Abuse 3 Prevention Act, case number 99-1558, before the Circuit Court of Lincoln County, Oregon. This Petition has never been served upon Jennifer Thurston. R. 83-84; Tr. pp. 6, 7. On April 7, 1999, a hearing was held upon Jennifer Thurston's Verified Petition for Protective Order in the Sixth Judicial District Court for Sanpete County before the Honorable David L. Mower. The morning of the hearing Mr. Thurston filed a response to Jennifer's Petition for a Protective Order. R. 58-66. On April 7, 1999, the Utah District Court entered a Protective Order awarding custody of the children to Jennifer Thurston, restraining Ronald Thurston from committing abuse or domestic violence against Jennifer Thurston and ordering him to stay away from the children's schools and church.